Tuesday, 31 May 2022

GENERAL DEFENCES UNDER TORT

 GENERAL DEFENCES UNDER LAW OF TORTS

BY NUPUR GARG

INTRODUCTION 

There are various cases brought against the defendant parties for the costs of a tort and every one the weather that is essential of the incorrect done by the defendant, He would be held chargeable for the incorrect that has been accrued. Therefore, in some cases, the defendant can avoid liability by taking the plea of the defences available under law of torts.

There are some specific defences available under the law of tort, just like the defences of privileges, action on defamation, fair justification and comment are available. Where the overall defence of consent could also be taken, whether the action is for defamation, internment, trespass, or other wrongs.

The general defences are Volenti non-fit injuria, defence of consent, catastrophe, Private defence, Plaintiff, the wrongdoer, Act of God, Mistake, Statutory Authority, Necessity.

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied. 

Some examples of the defence are:

  1. When you yourself call somebody to your house you cannot sue your guests for trespass; 

  2. If you have agreed to a surgical operation then you cannot sue the surgeon for it; and

  3. If you agree to the publication of something you were aware of, then you cannot sue him for defamation.

In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the death of one person. 

The conclusions which came out of this case are:

  1. The master of the driver could not be made liable as it was a case of a sheer accident and the strangers had voluntarily got into the vehicle.

  2. The principle of Volenti non fit injuria was not applicable here.

This maxim is subject to a number of exceptions:

  1. The game or sports or the operations must not be one which is banned by law. Football, Cricket, Hockey etc. are lawful games. However, boxing with open fists, duel with poisonous swords is legally prohibited. Similarly, notoriously dangerous processes in cinema shootings. In such cases the maxim does not apply. The injury may be sustained by the persons who are participating in the games or by the spectators or by third parties.


  1. Consent: The consent must be free and voluntary. If consent is obtained by fraud it is no consent. In a case a music teacher obtained the consent from his pupil fraudulently to improve her voice and seduced her. Held: Music teacher was liable.

  2. Knowledge does not necessarily imply consent. The test of consent is objective, for the rule is not Scienti (Knowledge), but volenti non fit injuria.

  3. Negligence: Cases of negligence are exceptions to the rule. In Dann v. Hamilton, P a lady passenger had knowledge that D who was driving a Taxi, was under the influence of drink. There was an accident due to negligence of the driver and P was injured. Held: D liable.

  4. Rescue cases: In circumstances where a person goes out to rescue another, the maxim does not apply. The leading case is Haynes v. Harwood. In this case a policeman P darted out from his police station to stop a van run by horses without a driver in a crowded street. The defendant D had left the van unattended on the highway and the horse had bolted when some boys threw stones at the horse. The police-man went to rescue and to stop the horses, but was seriously injured in this process. Held: D liable.

Inevitable Accident

Accident means an unexpected injury and if the identical accident couldn’t are stopped or avoided in spite of taking all reasonable care and precautions on the part of the defendant, then we call it an unavoidable casualty. It is a decent defence because the defendant could show that the injury couldn’t be stopped even after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell, the defendant and also the plaintiff visited a pheasant shooting. The defendant fired at a pheasant but the bullet after getting reflected by an oak hit the plaintiff and he suffered serious injuries.

Act of God

Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher.

The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. 

Essentials required for this defence are:

  1. Natural forces’ working should be there.

  2. There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably.

Private Defence

The law has given permission to safeguard one’s life and property and for that, it’s allowed the employment of reasonable force to shield himself and his property. the employment of force is justified just for the aim of self-defence.  There should be an imminent threat to a person’s life or property.

CONCLUSION 

General defences are a set of ‘excuses’ that you can undertake to escape liability. In order to escape liability in the case where the plaintiff brings an action against the defendant for a particular tort providing the existence of all the essentials of that tort, the defendant would be liable for the same. It mentions all the defences which can be pleaded in cases depending upon the circumstances and facts.  


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